ROBERT OLSON, Complainant

LILLY RESEARCH LABORATORIES 
DIVISION OF ELI LILLY & COMPANY, Respondent

An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on July 19, 1991. Complainant filed a timely petition for review by the commission. Both parties submitted written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed June 25, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

A threshold question presented here is what should be looked at in deciding the statute of limitations issue in this case. The Respondent raised its timeliness objection by way of a "Motion for Summary Judgment," which was accompanied by two affidavits, one of which was from a supervisor of complainant and dealt with the facts of the case, and one of which was from Respondent's attorney and served to incorporate a deposition of Complainant which Respondent had taken.

Summary judgment is a procedure available in civil actions and proceedings in court solely by virtue of the fact that the Legislature has provided for it by statute. Section 802.08, Stats. Neither the Administrative Procedure Act, the Fair Employment Act, or the Equal Rights Division's rules provide for any "summary judgment" procedure. The Commission has rejected the notion that a "summary judgment" procedure can somehow be considered to be implicit in these statutes or rules. Alvey v. Briggs & Stratton (LIRC, November 27, 1991). Certainly, an ALJ may, in appropriate circumstances, dismiss a complaint prior to hearing when it appears that even if what is claimed by complainant is true, a decision in favor of respondent is nevertheless required as matter of law. Alvey, Rick v. Foreway Express, Inc. (LIRC, July 25, 1985). However, making such an analysis should involve simply looking at what the complainant asserts.

As a general matter, any prehearing determination as to the legal adequacy of a charge of discrimination should be made by reference to the complaint, and not by reference to assertions made in subsequent affidavits or other collateral sources submitted by the party seeking dismissal. Notwithstanding this, in the particular circumstances of this case, it is appropriate to look beyond the narrow confines of the complaint to ascertain the Complainant's position and assertions.

The complaint was obviously drafted by or with the assistance of counsel, who is shown as the backup contact person and who also notarized the complaint. It is quite indefinite in terms of when the employer allegedly forced Complainant into early retirement by giving him the option of demotion or retirement. Counsel clearly knows or is chargeable with knowledge of the existence of the 300-day statute of limitations under the Fair Employment Act. The complaint's failure to indicate anything about when the choice of retirement was forced thus appears to have been a strategy to deal with a recognized statute of limitations problem.

However, the Equal Rights Division's rules provide that a complaint should state clearly and concisely the facts constituting the alleged discrimination, including the dates of each occurrence. Wisconsin Administrative Code Chapter Ind 88.02(1). Clearly, the purpose of requiring this is at least in part to allow the ERD to carry out the process in Ind 88.03 by which a preliminary review of complaints is conducted to determine if, among other things, they have been filed within the time required by the Act. Where a complainant frustrates this purpose by intentionally omitting the dates of certain important occurrences, it is appropriate to look to any reliable collateral sources for that information. Here, there is a discovery deposition of Complainant which may be consulted. There are also factual assertions in Complainant's Brief to the Commission. Taken together with the complaint, these sources are all assertions as to the facts made by Complainant which the Commission has assumed to be true for purposes of deciding the legal issue raised by Respondent.

The Commission would emphasize that it is not thereby recognizing the availability of "summary judgment." A respondent who moves to dismiss a complaint based on certain facts not disclosed in the complaint may not create an adequate basis for that motion merely by alleging those facts in its own affidavits. Furthermore, that respondent may not, merely by filing affidavits making those factual allegations, effectively force the complainant to file opposing affidavits or risk having the matters asserted in the moving party's affidavits taken as true. However, a respondent may move to dismiss a complaint prior, to hearing if it believes that even the facts asserted by the complainant require as a matter of law that the complaint be dismissed. The commission approaches this matter on that basis.

As Complainant himself concedes in his brief, the 300-day statute of limitations in the Fair Employment Act begins to run when the employer makes the discriminatory decision and communicates it to the employe, not merely when the decision becomes effective. Hilmes v. DILHR, 147 Wis. 2d 48, 52-53, 56, 433 N.W.2d 251 (Ct. App. 1988). Complainant was allegedly forced to choose retirement, and did so, more than 300 days prior to the filing of the complaint. Thus, this complaint would appear to be untimely. However, Complainant argues that his complaint is not untimely, for four reasons.

The first reason is purely procedural. Complainant asserts that Respondent waived its right to assert the statute of limitations as a defense by failing to raise it during the investigation. (Complainant had also asserted before the ALJ that Respondent had waived the defense by failing to assert it in an answer to the complaint; he has since dropped this argument, obviously because he has realized, as Respondent argues, that since the rules do not require any answer at the no probable cause hearing stage, his argument has no basis). However, there is nothing in the rules or statutes that indicates that affirmative defenses must be asserted during an investigation or be waived. When the Equal Rights Division provided for the possibility of waiver of the statute of limitations defense by failure to raise it in an Answer following a determination of probable cause, it did so expressly by rule. Wis. Admin. Code sec. Ind 88.11(2). A hearing following an investigation is a totally de novo inquiry; a respondent can fail altogether to participate in an investigation and still have the right to argue whatever it wishes at hearing. There is thus no basis for Complainant's argument that any particular defense is "waived" by a respondent's failure to raise it during the investigation stage.

Complainant's next argument is that the statute of limitations should not be considered to have started to run until he learned that he was being replaced by Howard Green, a man under the age of 40. He bases this argument on cases that hold that a statute of limitations for age discrimination does not begin to run as to a complainant until facts that would support a charge of discrimination are apparent or would be apparent to a person with a reasonably prudent regard for his or her rights. See, Gozinske v. DHSS (Wisconsin Personnel Commission, June 25, 1986), Oehlke v. Moore-O-Matic (LIRC, July 26, 1988). The principle here is that discrimination may sometimes be subtle and that it is unfair to charge a person with responsibility to act to remedy a violation of their rights before they even appreciate the fact that their rights have been violated. However, even at the time he was told in November 1988 that he would have to retire or be demoted, Complainant believed that age was probably a factor in what was happening. (Deposition, p. 17) Therefore, the whole question of his replacement is irrelevant. He did not need to learn of his replacement to form his suspicions. As of the point that he was given his option to retire or be demoted and he arrived at the opinion that age was a factor, everything necessary to begin the statute of limitations had occurred.

Complainant's final two arguments invoke equitable principles frequently cited in efforts to salvage untimely actions.

Courts have recognized two alternate, though related, doctrines whereby a plaintiff may modify the length of a filing period: equitable estoppel and equitable tolling. Kale v. Combined Insurance Company of America, 861 F.2d 746, 48 FEP 563 (1st Cir. 1988). Equitable estoppel occurs where an employe is aware of his rights but does not make a timely filing due to his reasonable reliance on his employer's misleading or confusing representations or conduct. Kale, Dillman v. Combustion Engineer Corp., 784 F.2d 57, 39 FEP 1750 (2d Car. 1986). The employer must be shown to have either an improper purpose or constructive knowledge of the deceptive nature of his conduct. Kale, Price v. Litton Business Systems, Inc., 694 F.2d 963, 30 FEP 803 (4th Cir. 1982).

Complainant invokes equitable estoppel by arguing that he was led by Respondent to believe that the forced retirement/demotion decision might be reversed and that Respondent is therefore estopped from complaining about the fact that he held off on the filing of a complaint. Although it makes this argument, Complainant's brief contains no indication whatsoever of any specific acts by Respondent which led him to think that the decision might be reversed. His complaint contains no allegations that anything was done which led him to believe that the decision might be reversed. However, he has effectively conceded that after he was told he had to retire or be demoted and he chose retirement, there was no discussion about the possibility of his continuing beyond his declared retirement date, and it was "accepted" that he would be leaving. (Deposition p. 18) In the absence of any other specific assertions on this issue, the Commission accepts this as representing the factual basis on which Complainant's position must be evaluated. Whether or not Complainant may have hoped that something might happen, this precludes his argument that Respondent encouraged such hope. As Respondent argues in its brief, a person's hope that an employer will reverse an adverse decision, when that hope is not being induced by statements or actions of the employer, is an inadequate basis on which to find equitable estoppel. Mull v. Arco Durothane Plastics, 784 F.2d 284, 293 (7th Cir. 1986).

Complainant finally argues that the statute of limitations should be deemed equitably tolled because (he asserts) Respondent did not have required informational posters concerning applicable anti-discrimination laws posted at the work place. The posting requirement he refers to is that created under the Age Discrimination in Employment Act, at 29 U.S.C. § 627, and it is therefore not strictly applicable to the viability of his claim under the Wisconsin Fair Employment Act. However, the ERD has adopted a posting requirement by rule, Wisconsin Administrative Code Chapter Ind 88.21, and therefore Complainant's arguments can be analyzed as if they had reference to this.

The Commission accepts for the purposes of discussion the assertion that Respondent did not comply with an applicable notice posting requirement. However, this does not result in a decision in Complainant's favor on the equitable tolling issue.

Equitable tolling is premised on a party's "excusable ignorance" of their statutory rights. It can be found to toll the statute of limitations, if the excusable ignorance is caused by failure of the employer to conspicuously post informational notices required by law. Kale.

Even where an employer has failed to post, the appropriateness of equitable tolling continues only until the employe receives actual notice or contacts an attorney. Kale, Kephart v. Institute of Gas Technology, 581 F.2d 1287, 17 FEP 1461 (7th Cir. 1978), Bonham v. Dresser Industries, 569 F.2d 187, 16 FEP 510 (3rd Cir. 1977), cert. denied 439 U.S. 821, 18 FEP 203 (1978). This obviously reflects the idea that as soon as the employe receives actual notice of his or her rights, or contacts an attorney who could presumably provide such notice, the employer's failure to post the notice can no longer be seen as a cause of any continuing failure to file.

Complainant has carefully omitted any indication of when he first contacted counsel. He apparently did so at or prior to the time he signed his complaint on June 5, 1990, since his attorney notarized that complaint.

The question of when Complainant contacted counsel becomes irrelevant, however, if there was actual knowledge in any event. The required knowledge is not of the details of the statute of limitations or other procedural niceties of the anti-discrimination statutes, but merely of the general fact that discrimination is unlawful. "Ignorance" as that term is used in discussions of "excusable ignorance" as grounds for equitable tolling, means ignorance of the unlawfulness of the employer's conduct. It does not mean ignorance of all the filing periods and technicalities contained in the law. Equity only requires that a plaintiff be generally aware that a statute has been passed that protects workers against age discrimination. Kale, Bonham, Vance v. Whirlpool Corp., 716 F.2d 1010, 32 FEP 1391 (4th Cir. 1983), cert. denied 465 U.S. 1102, 34 FEP 416 (1984), DeBrunner v. Midway Equipment Corp., 803 F.2d 950, 42 FEP 65 (8th Cir. 1986), Kazanzas v. Walt Disney World, 704 F.2d 1527, 31 FEP 1590 (11th Cir. 1983), cert. denied 464 U.S. 982 (1983), McClinton v. Alabama Byproducts Corp., 743 F.2d 1483, 35 FEP 1893 (11th Cir. 1984). Equitable tolling continues only until the employe acquires general knowledge of his right not to be discriminated against on account of age, or the means to obtain such knowledge. McClinton. Once an employe suspects that he may have been discriminated against on account of age and is also generally aware of his legal right to obtain redress for that wrong, he possesses sufficient knowledge to enable him to vindicate his rights, if he so desires, and when an employe is generally aware of his rights, ignorance of specific legal rights or failure to seek legal advice should not toll the statute of limitations. McClinton.

Many of the cases which do grant equitable tolling on the basis of failure of an employer to post required notices tend to be older, because awareness that discrimination in employment is prohibited by law has become much more general as time has passed since the prohibitions were enacted. This has been noted by commentators.

"The notice posting requirement used to be of far more consequence than it is now. The ADEA has been around for more than two decades, and most employes presumably know that it is illegal for an employer to discharge an older employe on account of age." 3A A. Larson and L. Larson, Employment Discrimination, § 102.12, p. 21-234. In fact, age discrimination has been unlawful under the Wisconsin Fair Employment Act since 1959, and under the federal Age Discrimination in Employment Act since 1967.

The Complainant's claim for equitable tolling should therefore be rejected even assuming that there were no posters up. He has not asserted that he was in fact ignorant of his legal right to be free from age discrimination. He has merely asserted that notices were not posted. However, the failure to post the notices is only considered legally significant if the employe is genuinely ignorant of the illegality of age discrimination which the notice, if it had been posted, could have informed him of. The length of time that age discrimination has been prohibited in Wisconsin and under federal law, the high level of education attained by this Complainant, and the increasingly general awareness that there are laws preventing employment discrimination based on age, make it very unlikely that the Complainant would have actually been unaware that age discrimination in employment was prohibited by law. In the conspicuous absence of an allegation to that effect, it will not be presumed. On the contrary, it would be fair to apply a presumption that in this day and age, employes are aware that discrimination on bases such as age is unlawful, and to place on the employes the burden of at least making the assertion that they lacked such knowledge.

Since none of the reasons advanced by the Complainant for disregarding the timeliness of his complaint are meritorious, the dismissal of the complaint is affirmed.

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